Skip to main content

Divorce Law

Volume 792: debated on Thursday 6 September 2018


Asked by

To ask Her Majesty’s Government what plans they have, if any, to reform divorce laws in England and Wales.

My Lords, divorce is a challenging time for couples and their children. This is particularly the case when people have to deal with allegations about a spouse’s conduct. The Government are looking closely at divorce law to see what can be done to reduce conflict. We want above all to limit the adverse impact on children. The Government are also listening to calls to change the law on financial provision in divorce. We are open to reviewing the evidence for change.

I thank my noble friend for her considered response. Surely, the recent case of Owens v Owens has shown clearly that our divorce law is not working; it is not up to standard. It encourages people to enter into a blame game and therefore increases acrimony within the family. Can I press my noble friend a little further? Can she now confirm, as reported in the press, that Justice Ministers want to work with the noble and learned Baroness, Lady Butler-Sloss, on her Private Member’s Bill, to take forward divorce law reform?

The case of Owens v Owens in the Supreme Court this summer is not typical. Only 2% of respondents contest the divorce and only a handful of those do so in a contested court hearing. However, we have noted the judgment and, as importantly, the comments of Lord Justice Munby that change is needed. My right honourable friend the Lord Chancellor is sympathetic to the argument for reform and appreciates the positive changes being put forward by the noble and learned Baroness, Lady Butler-Sloss, in her Private Member’s Bill. We look forward to working with her.

My Lords, I refer to my interest as an unpaid consultant to my former firm of solicitors. What assessment have the Government made of the impact of the withdrawal of legal aid in most family law cases on the efficiency of the court system? In 37% of cases neither party is now represented. What steps, if any, are they taking to improve the situation?

As the noble Lord will be aware, the post-implementation review of LASPO is currently under way. It is a chance for the Government to look at the effects of the changes made under the coalition Government and how we can best move forward. It is our view that legal aid continues to be available for the highest-priority cases. We need to make sure that it is targeted to those who need it most. As to those who are unable to have representation and who represent themselves, since 2015 we have invested nearly £6.5 million in a support strategy for unrepresented parties—litigants in person. It provides practical advice and information on routes to free or more affordable legal advice.

My Lords, divorce proceedings should involve collaboration to protect the future of the families involved, yet far too many cases, including many that end up undefended, start with a string of allegations, often exaggerated, to demonstrate fault. Given the overwhelming view of the judiciary and other legal professions, and the complete discrediting of the present law by the Supreme Court in the Owens case, can the Government have any reason for not supporting the Divorce (etc.) Law Review Bill of the noble and learned Baroness, Lady Butler-Sloss, mentioned by the noble Baroness, Lady Anelay, with a view to introducing no-fault divorce with a simple scheme of application and confirmation of irretrievable breakdown?

The noble Lord is quite right: collaboration should be at the heart of all divorcing couples, but, at the moment, three in five divorcing couples use conduct-based allegations, which create a huge amount of conflict. As I said, the Government are looking extremely closely at ways to reduce conflict in divorce, whether that be no fault, financial provisions or enforceable nuptial agreements. I very much hope that noble Lords will see progress in the near future.

My Lords, building on what the Minister has just said, which was most welcome, as those discussions take place, will there be a rigorous determination to keep the well-being of the children of the marriage in sharp focus, because children are often injured in conflict and we ought to do everything we can to protect them?

I should like to reassure the noble Lord. Children are at the heart of many divorces, and we must ensure that orders as to where children spend their time or in terms of financial contributions are made with the children at their heart and are fair to both divorcing people.

As a practising divorce lawyer, I ask my noble friend what will go into the timetable. I do not think that there is a family in the land that is not affected by divorce somewhere along the line. To accelerate reform in relation to marriage breakdown is good, but it is not good when the people who are divorcing are still living in the same house because they have not sorted out the money. The money has to be sorted out. That is not fit for purpose. On many occasions, the Supreme Court has said, “Please can Parliament help?”. In Granatino, a case I was involved with about prenuptial contracts, it was found not to be in our statute that a prenuptial agreement should be given any weight—but still we wait for Parliament to do something.

This is not a party-political speech but a general view around the House. People from all sides of the House want the Bill of the noble Baroness, Lady Deech, in relation to the recognition of prenuptial contracts, to be looked at. Prenuptial contracts depend on what is fair. That is decided only when you know what the law says and, at the moment, it is not fit for purpose. It needs to be put on the agenda so that everybody can have their say and make it better.

My Lords, the Government look forward to working with my noble friend and many others in your Lordships’ House—we recognise the expertise and experience contained therein. As proposals emerge, we will look for contributions from noble Lords to help us shape them further. I turn to my noble friend’s point about timing and mention the online divorce system that we set up in May 2018. It has had 11,000 applications. People can submit their forms online. It makes it quicker and easier to access justice and, as importantly, it means that the number of mistakes made on the forms is vastly reduced, thereby speeding up the whole process of divorce. I agree with my noble friend that we need to make it quicker, and we are doing something about it.

My Lords, is it worth Ministers looking at a Bill which passed both Houses of Parliament 22 years ago to allow for no-fault divorce? No doubt, having been introduced so long ago, the Bill has elements that could be changed—it represents my views at the time—but the essence of the Bill, which passed both Houses of Parliament with considerable majorities, was no-fault divorce.

My Lords, I recognise the enormous amount of work that my noble and learned friend Lord Mackay of Clashfern did on the Family Law Act 1996. It was a ground-breaking piece of legislation that led the way for Parliament to take the principled decision that divorce law could be changed to make it no-fault. However, that legislation was, some would say, overly amended, and in the end it became impracticable. Those provisions were repealed in 2014. However, we will go back to that legislation to see what Parliament agreed then. Society and probably parliamentary views have moved on since then, and I hope that we can craft something proper for the future.